Random thoughts on almost anything and everything, with an emphasis on defense, intelligence, politics and national security matters..providing insight for the non-cleared world since 2005.

Thursday, February 25, 2010

A Return of the Murphy Defense?

Military law analysts will be keeping a close eye on the case of Air Force Chief Master Sergeant William Gurney. Last November, In From the Cold was one of the first media outlets to report that Gurney had been fired as Command Chief Master Sergeant for Air Force Material Command (AFMC), headquartered at Wright-Patterson AFB, Ohio. As one of only 12 command-level chiefs in the service, Gurney became one of the most senior enlisted members to lose his job in recent years.

- Seven specifications of violation of Article 92, Failure to Obey an Order or Regulation and Dereliction of Duty.- Two specifications of violation of Article 93, Maltreatment.- Two specifications of violation of Article 120, Indecent Conduct and Wrongful Sexual Contact.- Seven specifications of violation of Article 134, Adultery and Misuse of Official Position.According to the statement,agents from the Air Force Office of Special Investigations began a probe into Gurney's conduct last November, after a junior female airman came forward with allegations of harassment. General Donald Hoffman, the AFMC Commander, relieved Chief Gurney from his position in late November, after the investigation began. Hoffman also asked another organization, Air Mobility Command, for the administration of military justice in the case. General Hoffman made the request because he was Gurney's immediate supervisor at AFMC.

At this point, it's impossible to accurately predict the outcome of Chief Gurney's case. In the past, senior officers and NCOs accused of sexual misconduct have been given administrative punishment and allowed to retire. But with the USAF's renewed emphasis on accountability, Chief Master Sergeant Gurney is facing the very real prospect of a court-martial, conviction, and even jail time.

But Gurney may have a legal ace up his sleeve, based another, recent Air Force case. Earlier this week, the service announced that Colonel Michael Murphy, a former senior JAG officer, will be retired on 1 April, in the grade of First Lieutenant. Murphy faced multiple charges at court-martial last year, after it was revealed that he had been disbarred as a civilian attorney and practiced military law--without a license--for more than two decades.

While Colonel Murphy was still convicted, he still escaped punishment. Before Murphy's day in court, a military judge ruled that he could not be punished (even if convicted), because the defense team could not present the "good airman defense," demonstrating the Colonel's past, honorable service. The ruling stemmed from the White House's refusal to divulge details of Murphy's classified service in the White House Military Office. Without that information, the judge ruled, Colonel Murphy could receive an adequate defense.

How does that help Chief Gurney? Before assuming his post at AFMC, Gurney spent most of his career in the intelligence career field, including stints as the Command Chief Master Sergeant for the 67th Information Warfare Wing and its successor, the 67th Network Warfare Wing. Over the past decade or so, that unit has been involved in some of the most sensitive computer warfare and information operations campaigns conducted by DoD. In his role as a senior leader, Gurney almost certainly had some knowledge of those efforts, and assisted wing commanders in managing the personnel who conducted those campaigns.

During his long tenure in the spook world, Gurney was aware of (and probably "read into") various SAR/SAP programs relating to some of our most sensitive assets and capabilities. Given that reality, it's easy to envision the Chief's legal team asking for details of those efforts, so they can be used in presenting the "good airman" defense. That would put the Air Force in a bind; releasing the information would--potentially--jeopardize key intelligence programs in the IO realm. But without the data, Gurney's defense team could make the same argument as Colonel Murphy's attorneys.

And we know how that turned out. Call it the "Murphy Defense," the disgraced JAG's most lasting contribution to military law.

Agreed - I don't understand why the jury can't be read into and then out of whatever program is needed. Isn't the criteria "need to know?" If so, then theirs would be the need to hear this so-called "good airman's" record in a judicial proceeding.

Ray/Storms: Fact is, the Air Force (and the other branches of the armed forces) have been court-martialing people with security clearances for years. In those cases, there was apparently no problem in defense attorneys getting details of their clients military record (at least a sanitized version of their achievements) and presenting it in court.

But the Murphy case represents a sweetheart deal of the worst sort. I fully believe that the Colonel (and his legal team) knew that the White House would never divulge details of his "classified" service and built his case around that factor, and its impact on the "good airman" defense.

To me, the amazing thing is that the military judge, Stephen Henley, bought the argument. And Henley is an Army judge; the USAF asked an Army judge to hear the case simply because Murphy knew/worked with--or even supervised--many Air Force judges during his career.

And once Henley made his ruling, it was affirmed by the Air Force military appeals court. At that point, Murphy was essentially a free man; the service could convict him, but he couldn't be punished.

If I were Gurney's defense counsel, I'd be asking for details of his involvement with every classified program the Chief was ever involved with, in preparation for the "good airman" defense. I'm guessing that Gurney doesn't have the horsepower to get folks in the spook world to deny those requests, as the White House did. But the precedent of the Murphy case certainly gives them grounds for a successful appeal, in the event of conviction.

If nothing else, the threat of a Murphy defense will probably be enough to get the Air Force to cut some sort of deal, allowing Gurney to retire as an E-8, and without any jail time.

As I implied in the post, the Murphy case will haunt the Air Force for years to come. The legal process could have easily handled the classified elements of his career, but the White House threw him a lifeline, and the military justice system gave Murphy a stay out of jail card. This mess stinks to high heaven, even if Murphy does retire as a First Lieutenant.

I would assume since the process has gotten to the court martial stage that there *might* be substance to the charges, but we'll wait for the outcome to pronounce judgment.

As the navy has found with "friggin' in the riggin'" so the other services seem to (re)discover a fact of nature. Put men and women together in tense circumstances and sex happens. I am still waiting for the adults to finally admit that there is no stopping the spooning behind the barracks, just come up with a better way of dealing with it. If it truly is a case of senior/sub harassment, I also do not see where there could be any rational defense of the act. Sexual harassment lectures, indoctrinations, courses, and refreshers have been a natural fact of military life for 40 years. None of that should be a surprise. And on the flip side, if it comes out that this is a case of "stick to the man" on the part of the junior, then similar wrath should be meted out to the offender likewise.